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U.S. Supreme Court

Brine v. Insurance Company, 96 U.S. 627 (1877)

Brine v. Insurance Company

96 U.S. 627


1. The laws of the state in which land is situated control exclusively its descent, alienation, and transfer and the effect and construction of instruments intended to convey it.

2. All such laws in existence when a contract in regard to real estate is made, including the contract of mortgage, enter into and become a part of such contract.

3. A state statute, therefore, which allows to the mortgagor twelve months to redeem after a sale under a decree of foreclosure, and to his judgment creditor three months after that, governs to that extent the mode of transferring the title and confers a substantial right, and thereby becomes a rule of property.

4. This right of redemption after sale is therefore as obligatory on the federal courts sitting in equity as on the state courts, and their rules of practice must be made to conform to the law of the state so far as may be necessary to give full effect to the right.

This suit began by a bill in chancery, filed in the Circuit Court of the United States for the Northern District of Illinois by the Hartford Fire Insurance Company to foreclose a mortgage, in the form of a deed of trust, on a lot in Chicago. The deed was signed by Bartalott and Barbier and their wives, and conveyed the lot to Benjamin E. Gallup, in trust to secure the payment of $7,000, loaned to them by the company, and the interest thereon as it fell due. The lot the title whereto was in the grantors when that deed was made was afterwards sold and conveyed by them to Samuel J. Walker. Walker sold, but did not convey, to Ida R. Brine, who, dying, left as her sole heir Ida Winter Brine.

Walker, after his sale to Ida R. Brine -- which was evidenced by a written instrument -- conveyed the lot to J. Irving Pearce in order that the sum of $6,000, which she owed him on the contract of purchase, might be held by Pearce as security for a debt of Walker to the Third National Bank of Chicago. All the parties interested in the lot were made defendants except the bank, whose interest was represented by Pearce.

A final decree was made which ascertained the sum due on the mortgage and allowed defendants one hundred days to pay chanrobles.com-red

Page 96 U. S. 628

it. If not paid within that time, the special master was ordered to sell the land for cash, making such sale in accordance with the course and practice of the court, and after retaining his commissions and paying the costs of the proceedings, deposit the remainder with the clerk, together with his report of sale, to abide the further order of the court.

From this decree Ida Winter Brine appeals.

The statute of Illinois bearing on the case is set out, and the assignment of errors mentioned in the opinion of the Court. chanrobles.com-red

Page 96 U. S. 631


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